U.S. v. INTERNATIONAL BROTH.

May 9, 1991

UNITED STATES OF AMERICA, PLAINTIFF,v.INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, ET AL., DEFENDANTS. IN RE APPLICATION XXII OF THE INDEPENDENT ADMINISTRATOR.

The opinion of the court was delivered by: Edelstein, District Judge:

MEMORANDUM & ORDER

This order emanates from the voluntary settlement in the
action commenced by plaintiff United States of America (the
"Government") against defendants International Brotherhood of
Teamsters (the "IBT") and the IBT's General Executive Board
(the "GEB") embodied in the voluntary consent order entered
March 14, 1989 (the "Consent Decree"). The remedial provisions
in the Consent Decree provided for three Court-appointed
officials, the Independent Administrator to oversee the
remedial provisions, the Investigations Officer to bring
charges against corrupt IBT members, and the Election Officer
to oversee the electoral process leading up to and including
the 1991 election for International Officers (collectively,
the "Court Officers"). The goal of the Consent Decree is to
rid the IBT of the hideous influence of organized crime.

Application XXII presents for this Court's review the
opinion and supplemental opinion of the Independent
Administrator deciding the disciplinary charges against
Theodore R. Cozza. Cozza, a defendant in the underlying
litigation and a signatory to the Consent Decree, is a member
of the GEB as the Ninth Vice President; the
Secretary-Treasurer of the Eastern Conference of Teamsters
Policy Committee; the President of Local 211 in Pittsburgh,
Pennsylvania, and chairman and trustee of the funds operated
by IBT Local 211, the Employee Welfare Fund, and the Prepaid
Legal Service Fund.

Cozza was charged by the Investigations Officer with
violating Article II, § 2(a) of the IBT constitution. Article
II, § 2(a) is the IBT membership oath, which provides in
pertinent part that every IBT member shall "conduct himself or
herself in a manner so as not to bring reproach upon the Union
. . ." The charge alleged that Cozza had conducted himself in a
manner to bring reproach upon the IBT by knowingly associating
with members of La Cosa Nostra from January 1, 1970 to the
present. The Investigations Officer charged Cozza with
knowingly associating with six members of the Pittsburgh area
La Cosa Nostra.

The Independent Administrator determined that the
Investigations Officer had met his burden and demonstrated
just cause that the charge had been proved. The Independent
Administrator determined that the following five of those
individuals named by the Investigations Officer, John S.
LaRocca, Gabriel "Kelly" Mannerino, Michael Genovese, Joseph
"JoJo" Pecora, and Joseph Sica, were, members of La Cosa
Nostra (the "five individuals"). The Independent Administrator
further determined that Cozza had knowingly associated with
those five individuals. The proof against Cozza is fully set
out in the Independent Administrator's opinion, attached to
this memorandum as the Appendix, and need not be repeated
here. (Appendix, at 806-13). The Independent Administrator
imposed the penalty of permanent debarment from the IBT.
Further, the Independent Administrator determined that the IBT
or any affiliated entity should make no further payments to
any of Cozza's five pension plans, or his three health and
welfare benefit plans.

In the hearing before the Independent Administrator and in
his papers before this Court, Cozza admits that he associated
with the five individuals. Rather, in his voluminous appeal of
the Independent Administrator's opinions, Cozza argues (i) he
was denied pre-hearing discovery, (ii) the charge was
unspecific, (iii) the charge violates his first and fifth
amendment rights, (iv) he was unaware that those five
individuals were members of La Cosa Nostra, and (v) the
membership of Local 211 knew generally of his association with
these individuals. Considering the unrefuted proof before the
Independent Administrator, Cozza's position as a leader of the
IBT, and the nature of the charges against him, these
arguments are disingenuous, contrary to established law, and
totally without merit.

Paragraph F.12.(C) of the Consent Decree mandates that the
Independent Administrator must decide disciplinary hearings
using a "just cause" standard. Consent Decree at 9. This Court
should overturn the findings of the Independent Administrator
when it finds that they are, on the basis of all the evidence,
"arbitrary or capricious." This Court and the Court of Appeals
have interpreted ¶ K.16 to mean that decisions of the
Independent Administrator "are entitled to great deference."
905 F.2d at 616 (2d Cir. 1990) aff'g March 13, 1990 Opinion and
Order, 743 F. Supp. 155 (S.D.N.Y. 1990).

Since Cozza does not demonstrate that any of the Independent
Administrator's determinations are arbitrary or capricious,
his opinion and supplemental opinion must be affirmed in all
respects.

II. Discussion

A. Discovery

Cozza's argument that the Independent Administrator violated
the Consent Decree by refusing to grant him pre-hearing
discovery is meritless. Paragraph F.12.(C) of the Consent
Decree, which governs disciplinary hearings, does not give an
IBT member against whom disciplinary charges have been filed
any right of pre-hearing discovery. Cozza was not prejudiced
by the conduct of the hearing. After the completion of the
Investigation Officer's case against Cozza, he was granted a
19 day recess to consider all of the evidence and present his
defense. Cozza claim that he was denied an opportunity to
review the proof against him before putting on his defense
absolutely belies all the facts before the Independent
Administrator and this Court.

The Court finds his argument facetious, empty of any merit
whatsoever, and is rejected.

B. Specificity of Charges

Cozza argues the charge against him was not adequately
specific. A review of prior decisions and the charge
demonstrates this is not so. The charge against Cozza listed
the individuals that he was alleged to have associated with,
and the time span for those associations. This Court has
upheld virtually identical charges filed by the Investigations
Officer against IBT members. August 27, 1990 Opinion & Order,
745 F. Supp. 908 (S.D.N.Y. 1990); September 18, 1990 Opinion &
Order, 745 F. Supp. 189 (S.D.N.Y. 1990). The charge against
Cozza was a plain, concise statement of the essential facts
constituting the offense charged.

Cozza asserts that to be disciplined for associating with
known organized crime figures violates his first amendment
freedom of association rights. This Court has specifically
rejected that argument. August 27, 1990 Opinion & Order,
supra, 745 F. Supp. at 913. This Court held that:

The Independent Administrator has determined that
the IBT has the right to discipline members for
knowingly associating with organized crime
figures since it has a compelling institutional
interest in ridding itself of corruption. The
IBT's sanctioning itself in order to rid itself
of corrupt influence conforms with § 101(a)(2) of
the LMRDA, and infringes no First Amendment rights.

Id. Cozza does even not attempt to address this holding.
Further, Cozza is being disciplined by the Independent
Administrator as a stand in for the IBT General President. He
does not establish the state action necessary for a
constitutional claim.

Cozza's fifth amendment due process argument ignores
established precedent and is fanciful. Cozza argues that
current punishment for past conduct violates his rights. He
claims he was never notified that associating with organized
crime figures could subject him to discipline. That very same
argument was previously raised and rejected by this Court in
its August 27, 1990 Opinion and Order, supra, 745 F. Supp. at
913-14.

Relatedly, Cozza also argues that these charges are unfair.
He contends that the Government assured him in negotiating the
Consent Decree that the ¶ E.10 injunction against associating
with organized crime figures would apply to prospective
conduct. This argument is irrelevant, since Cozza was charged
with violating his IBT oath of office, not ¶ E.10 of the
Consent Decree.

This Court has specifically held that IBT members may be
disciplined for associating with organized crime figures which
occurred prior to the signing of the Consent Decree. In
rejecting an identical challenge, this Court held "[by such
conduct they] ignore[ ] their avowed duties as IBT officers to
remain free of corrupt influence." Id. at 914. Cozza, as an
International Vice President and member of the GEB, was under
the highest duty to remain free of any taint or appearance of
corruption. This Court has previously held that during the time
in question Cozza clearly knew or should have known that close
contact with organized crime figures was in contravention of
his duty to the membership as a union officer. Id. Paragraph
E.10 of the Consent Decree is not relevant to these charges.

Cozza's arguments are without merit.

D. Cozza's Knowledge

Cozza argues that he did not knowingly associate with
organized crime figures because he was unaware that the five
individuals were members of the Pittsburgh La Cosa Nostra. This
argument does violence to the truth and offends reason. Counsel
for Cozza admitted that "Cozza knew of the allegations against
these individuals, as did many members of Cozza's local union
and the public at large," but argues that Cozza did not have
conclusive knowledge of their criminal conduct.

The Independent Administrator considered Cozza's admitted
personal contact with these five individuals, including
visiting with LaRocca on almost a daily basis, and concluded
"it is inconceivable that he [Cozza] was unaware that they
were infamous members of Pittsburgh's underworld . . . I
conclude that such knowledge may be inferred from the duration
and quality of the association." Appendix at 811-12.

Finally, Cozza argues that the Independent Administrator
erred by rejecting his contention that Article II, § 3(d) ("§
3(d)") of the IBT constitution, reproduced below, bars this
charge.*fn1 This reasoning is baseless.

Judicial interpretation of § 3(d) has established that to
invoke this defense, a member must demonstrate "that the
membership . . . had conclusive knowledge that the defendants
were actually guilty of the conduct when they were" elected to
their current term of office. March 13, 1990 Opinion & Order,
743 F. Supp. 155, 166 (S.D.N.Y.) aff'd 905 F.2d 610 (2d Cir.
1990). Section 3(d) cannot be used when the charged member
denies the conduct. Id.; November 2, 1989 Memorandum & Order,
725 F. Supp. 162, 165 (S.D.N.Y. 1989), aff'd 905 F.2d 610 (2d
Cir. 1990).

Cozza is legally barred from invoking § 3(d). Cozza denies
that he knowingly associated with organized crime figures: He
still maintains that he did not know that the five individuals
were members of La Cosa Nostra. Accordingly, Cozza cannot avail
himself of the § 3(d) defense since, as the Independent
Administrator found, "it would be impossible for the Local 211
rank and file to be generally aware that Cozza was `knowingly
associating' with underworld figures, when Cozza himself denies
that he knew of their underworld ties." Appendix at 813. As a
result, the questionnaires Cozza presented to the Independent
Administrator which purportedly demonstrated that the
membership "knew generally" of his conduct is no more real than
a mirage.

Nor should I overlook that Cozza has not even argued that
the membership of the Eastern Conference of Teamsters, or the
GEB as the representative of the entire IBT, knew generally of
his conduct. Since he was an officer of both, he must
demonstrate that all members of those bodies knew generally of
his conduct to avail himself of the § 3(d) defense.

Cozza's argument is meritless and must be rejected.

III. Conclusion

IT IS HEREBY ORDERED that Cozza's objections to the opinion
and supplemental opinion are hereby denied.

IT IS HEREBY ORDERED that the opinion and supplemental
opinion of the Independent Administrator are affirmed in all
respects.

IT IS FURTHER ORDERED that the stay on the penalties imposed
by the Independent Administrator is dissolved, effective
immediately.

Cozza has been the President of Local 211 in Pittsburgh,
Pennsylvania since 1950. He also serves as Chairman and
Trustee for each of the funds operated by Local 211, including
the Pension Fund, the Employee Welfare Fund, and the Prepaid
Legal Service Fund. He is, as well, the Secretary-Treasurer of
the Policy Committee of the Eastern Conference of Teamsters.
Lastly, Cozza sits on the IBT General Executive Board as the
Ninth Vice-President.

Cozza was named as a defendant in the Government's
underlying civil RICO suit against the International
Brotherhood of Teamsters ("IBT") (United States v. IBT, et al.,
88 Civ. 4486 (DNE)); and he was also a signatory to the March
14, 1989, Consent Order that settled that suit.

I. The Charge

The Investigations Officer charges that Cozza has violated
Article II, Section 2(a)[fn1a] of the IBT Constitution:

By conducting [himself] in a manner to bring
reproach upon the [IBT], to wit: By [his]
knowingly associating from, at least, January 1,
1970 to the present with members of organized
crime families of La Cosa Nostra including John
S. LaRocca, Gabriel "Kelly" Mannerino, Michael
Genovese, Joseph "JoJo" Pecora, Antonio Ripepi
and Joseph Sica.

II. Cozza's General Defenses

A. The Objection To The Specificity Of The Charge And The
Pre-Hearing Discovery Issue

Cozza challenges the charge filed by the Investigations
Officer as falling short of the Consent Order's requirement of
"written specific charges." Cozza also claims the charge is
not specific enough under federal law. Cozza also takes
exception to the fact that he was not supplied with
pre-hearing discovery. Cozza Post-hearing Memorandum at pp.
47-57. Pre-hearing memoranda were submitted on this very
issue. On November 30, 1989, I wrote to Cozza's counsel
stating that, "given the nature of these charges, I hold that
there is no right to pretrial discovery in this matter. Thus,
your request for information from Mr. Carberry regarding the
`specificity' of the charges against Cozza is denied."

In addition, Cozza made similar claims before the Honorable
David N. Edelstein prior to the commencement of his hearing.
Judge Edelstein rejected these claims, first at a pretrial
conference on a complaint Cozza had filed against me (March 8,
1990), then again in rejecting Cozza's request for an
injunction preventing his disciplinary hearing from going
forward. In denying the injunction, Judge Edelstein
specifically directed Cozza to bring to him any claims he
might have after I issued my decision on the merits. Cozza v.
Lacey, et al., 740 F. Supp. 285 (S.D.N.Y. 1990).[fn2a]

Moreover, it has been the Investigation Officer's practice
to provide a respondent, prior to the commencement of a
hearing, with the evidence that will be offered against him.
This was done in this case. On or about July 10, 1990, the
Investigations Officer began supplying Cozza with his
evidence. The last of the evidence was supplied on July 13,
1990, the day before the hearing commenced. Thereafter the
hearing did not reconvene for some 19
days. This gave Cozza's counsel ample time to review and
understand the Investigations Officer's evidence.

In addition, the charge itself was specific. It named the
six individuals with whom Cozza had allegedly associated. It
stated the date the associations commenced. It also noted that
Cozza's relationship with the named organized crime members
was continuing to the day of the filing of the charge.

Still further, the prohibition against "knowingly
associating" with organized crime figures is not vague. Cozza
apparently understood the term when he signed the Consent
Order which specifically enjoined him from "knowingly
associating with any member or associate" of organized crime.
Moreover, in my July 12, 1990, decision in the matter of
Investigations Officer v. Senese, et al. aff'd, United States
v. IBT, (Application XII), 745 F. Supp. 908 (S.D.N.Y. 1990), I
clearly set forth the Investigations Officer's burden on such a
charge. Id. at pp. 35-37.See also p. 812, infra. Cozza was
quite familiar with that matter as he devoted four pages of his
post-hearing submission in attempting to distinguish the Senese
case. He also devoted an additional four pages attempting to
distinguish another "knowingly associating" case decided by me,
Investigations Officer v. Salerno, et al., Opinion of the
Independent Administrator, August 20, 1990, aff'd, United
States v. IBT (Application XIII), 745 F. Supp. 189 (S.D.N Y
1990).

Most significantly, Judge Edelstein has already found such
charges to be specific and well within the requirements of the
Labor Management Reporting And Disclosure Act (29 U.S.C. § 411),
the IBT Constitution and the Consent Order. United States
v. IBT, 743 F. Supp. 155 (S.D.N.Y.), aff'd, 905 F.2d 610 (2d
Cir. 1990).

In sum, Cozza's claims of prejudice due to lack of
specification and lack of pre-hearing discovery are without
merit.

B. Cozza's Lack Of Notice Claim

Cozza argues that the charge must be dismissed because he
was never put on notice that his actions would bring reproach
upon the IBT. Cozza Post-hearing Memorandum at pp. 58-64.
Cozza contends that until the Consent Order's permanent
injunction against further association with La Cosa Nostra was
entered, he lacked notice that he should not engage in such
associations. This identical argument has already been
rejected by me in my July 12, 1990, Opinion (pp. 11-13) in the
Senese matter.

In advancing this argument Cozza adds a new twist. Cozza
reviews the evolution of the IBT Constitution, arguing that
"the conduct challenged herein was not subject to discipline
in the 1970's, so that there was no notice to Cozza or other
IBT members." Cozza Post-hearing Memorandum at p. 59. Cozza
states that the conduct was "prohibited under the 1957 IBT
Constitution, was removed in 1961, and did not reappear until
the Consent Order's permanent injunction in 1989."
Ibid. As stated by Cozza:

Even more telling proof was the Government's
civil RICO suit, brought in an attempt to correct
the asserted failure of the IBT to enforce
disciplinary measures in the past.
[Ibid.]

Cozza also asserts, through the testimony of Robert Baptiste,
Esq. (one of the attorneys who negotiated the Consent Order
with the Government on behalf of several individual
defendants) that in negotiating the injunctive provisions of
the Consent Order regarding association with La Cosa Nostra
"the parties understood it to be prospective." Id. at p. 60.

Cozza's reliance on the development of the IBT Constitution
does not alter the fact that a union officer's association
with organized crime figures on its face brings reproach upon
his union, whether or not the IBT Constitution ...

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